COURT OF APPEAL FOR ONTARIO

DATE: 20030926

DOCKET: C38527

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JEFFREY JAY MITCHELL (Appellant)

BEFORE:

WEILER, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Delmar Doucette

for the appellant

Scott Hutchison

for the respondent

HEARD:

September 24, 2003

On appeal from the sentence imposed by Justice Archie G. Campbell of the Superior Court of Justice, sitting without a jury, dated May 8, 2002, and from the conviction imposed by Justice Campbell dated June 10, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The conviction appeal was not pursued and is dismissed.

[2] The sentencing judge gave detailed reasons for the sentence he imposed. With one minor exception we see no error in these reasons. The one exception relates to the appellant’s pre‑trial custody. When the appellant was arrested on these charges he began serving the remnant of his prior sentence. Instead of returning to Collins Bay, however, the appellant was incarcerated at the Toronto East Detention Centre for approximately one year while his preliminary inquiry took place.

[3] The sentencing judge may have been inadvertently misled as he was initially advised that the appellant had spent little time at Toronto East but had been returned to Collins Bay. He gave no credit to the appellant for any pre‑trial custody having determined that it was due to revocation of parole.

[4] Having regard to what actually happened the appellant ought to have received credit for one year pre‑trial custody: see R. v. Warren (Ont. C.A.) Nov 25, 1999. We would not otherwise interfere with the totality of the sentence.

[5] Accordingly, we grant leave to appeal sentence and reduce the sentence by one year for a sentence of 12 years consecutive.